Ricker v. Ricker

Citation270 P.2d 150,201 Or. 416
PartiesRICKER v. RICKER.
Decision Date12 May 1954
CourtSupreme Court of Oregon

Charles R. Cater, La Grande, for appellant.

Patrick J. Gallagher, Ontario, Gallagher & Gallagher, Ontario, on the brief, for respondent.

Before LATOURETTE, C. J., and WARNER, ROSSMAN, TOOZE and PERRY, JJ.

TOOZE, Justice.

This is an action for money loaned, brought by plaintiff F. E. Ricker against Mabel Ricker, executrix of the estate of G. H. Ricker, deceased, as defendant. The trial court sustained defendant's general demurrer to the amended complaint; and plaintiff having failed to plead further, judgment was entered dismissing the action. Plaintiff appeals.

By his amended complaint, plaintiff, after alleging the appointment of defendant as executrix of the estate of G. H. Ricker, deceased, stated his cause of action as follows:

'II

'The plaintiff duly presented his claim hereinafter alleged to the defendant above named in her capacity as such executrix on or about July 17, 1953, before expiration of the period of six months after the date of the published notice of her appointment as such executrix, and the defendant as such executrix rejected, disallowed and denied plaintiff's claim on July 21, 1953, and filed the original claim with her endorsement rejecting the same with the County Clerk.

'III

'The defendant's decedent, G. H. Ricker, was plaintiff's brother.

'IV

'On December 8, 1919 the plaintiff lent to his brother, G. H. Ricker, the sum of $3000.00 upon the agreement of said G. H. Ricker to pay plaintiff 10% interest thereon, which was the customary rate at that time. The entire agreement was oral. There was no time fixed or agreement upon when the sum loaned should be repaid. Interest for the first two years was paid to plaintiff for the account of said G. H. Ricker, and on October 19, 1924, $650.59 was repaid to plaintiff for the account of G. H. Ricker on said loan. Said payments were made by one Oliver Crews who owed G. H. Ricker the sum so paid and were made at the direction of said G. H. Ricker. In or about 1924 the plaintiff and his brother, the said G. H. Ricker, discussed the loan and for the first time fixed a time for its repayment. Plaintiff's brother had suffered a business reversal in the five years intervening since the loan and for that reason he and the plaintiff thereupon agreed that the loan should be repaid when plaintiff's brother 'got on his feet' and able to pay. The defendant's decedent, G. H. Ricker, was unable to pay the amount due at any time between the date of the loan and August 14, 1947, and between August 14, 1947 and that date of the commencement of this action, the precise time of which is unknown to the plaintiff, the defendant's decedent, G. H. Ricker, did become financially able to pay his obligation to the plaintiff. In the interim between the time of the loan and the death of decedent, G. H. Ricker, the plaintiff discussed with him from time to time at the farm of said decedent, his brother's financial condition, and the said G. H. Ricker in those conversations stated to the plaintiff that he had not yet got on his feet and was unable to pay the amount due, and the plaintiff relied on the representations so made by his brother, the defendant's decedent and was lead to believe and did believe that said decedent was as yet unable to pay the amount due. It was not until the death of the decedent and the condition of his estate became known to the plaintiff, that he knew that his brother was able and his brother's estate was sufficient to repay the money borrowed so many years before.

'V

'That no payment of principal or interest have been made except as set out above and there is now due and owing from defendant to plaintiff the sum of $2349.41 and $7626.30 interest, a total amount of $9975.71.'

Defendant demurred to this amended complaint on the ground that it failed to state facts sufficient to constitute a cause of action.

It is defendant's position, and the trial court held, that on its face the amended complaint conclusively established that the alleged claim against the estate of G. H. Ricker was barred by the statute of limitations: ORS 12.080.

That statute provides that 'An action upon a contract or liability, express or implied' shall be commenced within six years after the cause of action shall have accrued.

The sole contention made by plaintiff on this appeal is that the objection that the complaint shows on its face that the cause of action is barred by the statute of limitations must be made by special demurrer based upon that particular ground, and that it cannot be made by general demurrer. He states his proposition as follows:

'When it appears from the complaint that the action was not commenced within the time limited by law the objection must be taken by demurrer on that ground or it is waived. The objection cannot be made by general demurrer. Appellant does not by this concede that it does appear from the complaint that the action was not commenced within the time limited.' (Italics ours.)

In support of this contention, plaintiff cites ORS 16.260 and ORS 16.330; also, Eastman v. Crary, 131 Or. 694, 699, 284 P. 280, 282.

Oregon Revised Statutes 16.260 provides:

'The defendant may demur to the complaint * * *, when it appears upon the face thereof:

'(1) That the court has no jurisdiction of the person of the defendant, or the subject of the action;

* * *

* * *

'(6) That the complaint does not state facts sufficient to constitute a cause of action; or

'(7) That the action has not been commenced within the time limited by statute.'

Oregon Revised Statutes 16.270 provides:

'The demurrer shall distinctly specify the grounds of objection to the complaint; unless it does so, it may be disregarded. * * *'

Oregon Revised Statutes 16.330 provides:

'If no objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived any objection, save for the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. * * *'

In Eastman v. Crary, supra, we said:

'If it be true that it affirmatively appears from the complaint that the action was not commenced within the time limited by the statute, defendant should have interposed a demurrer on that ground. Not having done so, the point is waived. * * *

'It is a settled rule in this state that, if it appears from the face of the complaint that the action has not been commenced within the time limited by statute, the objection must be taken by demurrer.'

The amended complaint shows on its face that the money was loaned to G. H. Ricker, now deceased, on December 8, 1919. At the time the loan was made by plaintiff as alleged, no time was fixed for the repayment thereof. In such circumstances, it was repayable on demand. 58 C.J.S., Money Lent, § 3a, page 878.

It is well settled that the statute of limitations begins to run at the time when a complete cause of action accrues or arises, unless it is otherwise provided by statute. In 54 C.J.S., Limitations of Actions, § 130, page 45, the following rule is stated:

'A loan of money payable on demand creates a present debt, and the statute of limitation begins to run against the lender from the date of the loan.'

It follows, therefore, that the statute of limitation commenced to run against p...

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    • United States
    • Oregon Supreme Court
    • June 21, 1990
    ...is paramount to the former"); Colby v. Larson, 208 Or. 121, 126-27, 297 P.2d 1073, 299 P.2d 1076 (1956); Ricker v. Ricker, Administratrix, 201 Or. 416, 424, 270 P.2d 150 (1954). The 1987 legislature enacted, as a new subsection 2 of ORS 163.150, the mandatory sentencing provisions upon whic......
  • Estate of Musgrove, Matter of
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    ...of Timberlake, 497 S.W.2d 191, 195 (Mo.App.1973); Akre v. Washburn, 92 N.M. 487, 489, 590 P.2d 635, 637 (1979); Ricker v. Ricker, 201 Or. 416, 422, 270 P.2d 150, 153 (1954); Johnson v. Wold, 475 P.2d 714, 716 (Wyo.1970). Other jurisdictions have held that silence as to time of repayment sho......
  • Dixon v. Schoonover
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    • February 8, 1961
    ...the pleading the action is barred by the statute of limitations, the objection must be taken by demurrer or it is waived. Ricker v. Ricker, 201 Or. 416, 270 P.2d 150; Eastman v. Crary, 131 Or. 694, 284 P. 280; Creason v. Douglas County, 86 Or. 159, 167 P. 796; Spaur v. McBee, 19 Or. 76, 23 ......
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